{"id":2691,"date":"2021-12-15T13:44:53","date_gmt":"2021-12-15T12:44:53","guid":{"rendered":"http:\/\/localhost:10164\/?p=2691"},"modified":"2022-02-09T11:09:16","modified_gmt":"2022-02-09T10:09:16","slug":"rule-of-law-update-november","status":"publish","type":"post","link":"https:\/\/www.commissie-meijers.nl\/nl\/rule-of-law-update-november\/","title":{"rendered":"Rule of law update – November"},"content":{"rendered":"
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COURT NEWS<\/h5>\n

Judgement in\u00a0C-564\/19<\/a><\/strong>: The CJEU found that EU law precludes a supreme court (in this case the Hungarian K\u00faria) from annulling a decision by a lower court to refer a case to CJEU. The principle of primacy of EU law means that the lower court should disregard the K\u00faria. Furthermore, the CJEU has found that EU law precludes a domestic disciplinary procedure against a judge over referring the case to CJEU, highlighting that such practice can lead to a chilling effect and ward off judges from sending cases over to CJEU.<\/span><\/p>\n

Judgment in\u00a0Case C-821\/19<\/a>\u00a0(Commission v Hungary)<\/strong>\u00a0concerning the\u00a0criminalisation of assistance to asylum seekers<\/strong>: the CJEU found that the 2018\u00a0\u2018Stop Soros\u2019 law<\/strong>\u00a0breaches EU law, after the European Commission took Hungary to court. The CJEU made clear that threatening people with imprisonment who assist asylum-seekers to claim asylum violates EU norms. Read more about this in\u00a0this article<\/a>\u00a0by the Hungarian Helsinki Committee, 16 November 2021.<\/p>\n

Judgment in\u00a0Joined Cases C\u2011748\/19 to C\u2011754\/19<\/a>\u00a0(Prokuratura Rejonowa w Mi\u0144sku Mazowieckim and Others)<\/strong>\u00a0EU law precludes the regime in force in Poland which permits the Minister for Justice to second judges to higher criminal courts. A secondment in itself might not influence the independence of judges, but under the current setup, where the Minister of Justice (who seconds the judges) is also the Prosecutor General (who might have interest in the outcome of a case, this system is problematic.\u00a0 The Minister of Justic can terminate such secondments at any time without stating reasons or criteria, which can influence judges\u2019 independence.<\/p>\n

Judgement in\u00a0Doli\u0144ska-Ficek<\/span>\u00a0and Ozimek v. Poland<\/span>\u00a0(<\/strong>49868\/19 and 57511\/19)<\/strong>: the ECtHR has ruled that\u00a0Poland\u2019s Supreme Court\u2019s Extraordinary Review and Public Affairs Chamber is not an independent court<\/strong>. The case concerned complaints brought by two judges that the Chamber of Extraordinary Review\u00a0 and Public Affairs of the Supreme Court, which had decided on cases concerning them, had not been a \u201ctribunal established by law\u201d and had lacked impartiality and independence. Particularly, they complained that the chamber had been composed of judges appointed by the President of Poland on the recommendation of the National Council of the Judiciary (\u201cthe NCJ\u201d), the constitutional organ in Poland which safeguards the independence of courts and judges and which has been the subject of controversy since the entry into force of new legislation providing, among
other things, that its judicial members are no longer elected by judges but by the Sejm (the lower house of Parliament). Read the whole judgement\u00a0here<\/a>.<\/span><\/p>\n

Judgment in Polish case K 6\/21:<\/strong>\u00a0the Polish Constitutional Court\u00a0found that Art. 6 (1) of European Convention on Human Rights is incompatible with Polish Constitution regarding the right to fair trail in proceedings before the very same Constitutional Tribunal. Read more on the court\u00a0hearing<\/a>\u00a0and the\u00a0decision<\/a>\u00a0in Jakub Jaraczewski\u2019s Twitter threads and in\u00a0this article by Notes from Poland.<\/a><\/span><\/p>\n

Court hearing in case\u00a0C-562\/21<\/span><\/strong>\u00a0concerning a\u00a0Dutch court (Rechtbank Amsterdam) asking the CJEU whether European Arrest Warrants can be executed with regards to Poland, given the state of the rule of law there. You can read more about the hearing in this\u00a0Twitter-thread<\/a>\u00a0by Niels Kirst.<\/span><\/p>\n

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GENERAL<\/h5>\n

The European Commission presented its plans for EU-wide media rules within the Media Freedom Act on 29 November.<\/strong>\u00a0The law will include rules on cross-border functioning and ownership of media inside the EU to prevent government interference. The law will also include rules to prevent excessive concentration of media ownership. On\u00a0Balkan Insight<\/a>\u00a0you can read about the Media Freedom Act\u2019s ambitions and if these ambitions are maybe a case of \u201ctoo little, too late\u201d.<\/p>\n

Germany\u2019s incoming government plans to urge Brussels to get tougher on rule-of-law breaches, according to the coalition treaty.\u00a0<\/strong>Germany\u2019s new Foreign Minister Annalena Baerbock stressed\u00a0 that \u201cintensive discussions\u201d on rule of law issues were necessary, when she visited Warsaw in the beginning of December.<\/p>\n

The European Commisison sent letters to Hungary and Poland<\/strong>\u00a0as a preliminary step before launching the formal procedure of the Conditionality Regulation. In its letter, is warning Poland and Hungary about concerns over judicial independence, ineffective prosecution of corruption, and deficiencies in public procurement could pose a risk to the EU\u2019s financial interests, and could eventually lead to financial penalties. Read more on\u00a0Politico<\/a>, 20 November 2021.<\/p>\n

Czechia and Poland failed to agree on a deal concerning Tur\u00f3w mine.<\/strong>\u00a0Such a deal would have led to the withdrawal of a lawsuit concerning coal mine Tur\u00f3w located at Czech-Polish borders. Representatives of the two neighbouring countries will now meet\u00a0 at the European Court of Justice for the first hearing. Read more on\u00a0Euractiv<\/a>, 9 November 2021.<\/p>\n

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BULGARIA<\/h5>\n

EU lawmakers urge the Commission to tightens control over Bulgaria.<\/strong>\u00a0The European Parliament\u2019s civil liberties committee wants the European Commission to strengthen its monitoring and audit of EU funds for Bulgaria, including the Recovery and Resilience Facility. Read more here on\u00a0Euractiv<\/a>, 18 November 2021.<\/p>\n

Bulgarian parlamentarian and presidential elections.\u00a0<\/strong>\u00a0\u2018Change continues\u2019, a new political force in Bulgaria, is the surprise leader following the parliamentary and presidential elections in Bulgaria, while the country\u2019s President Rumen Radev is well-placed for reelection, having won 48.5% in the first round. Read more on\u00a0Euractiv<\/a>, 15 November 2021.<\/p>\n

Read more about the details of the Bulgarian elections and what it means for the rule of law in\u00a0this article<\/a>\u00a0by Jakub Jaraczewski for Democracy Reporting International.<\/p>\n

Bulgaria\u2019s Justice minister Ivan Demerdjiev offered scathing\u00a0criticism of Prosecutor-General Ivan Geshev<\/strong>, saying that unless he is removed, Bulgaria risks losing access to EU funding.\u00a0 Read more on\u00a0Euractiv<\/a>, 12 November 2021.<\/p>\n

The Bulgarian presidential candidate and self-declared Nationalist Socialist Boyan Rassate, was accused for allegedly attacking an LGBTIQ+ centre in Sofia.<\/strong>\u00a0The attack was condemned by the other presidential candidates. Read more on\u00a0Balkan Insight<\/a>, 1 November 2021.<\/p>\n

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CZECH REPUBLIC<\/h5>\n

Czech Prime Minister Andrej Babi\u0161 stepped down.\u00a0<\/strong>Babi\u0161 appointed the head of the Together coalition, Petr Fiala, as the country\u2019s next head of government. Read more on\u00a0Politico<\/a>, 5 November 2021.<\/p>\n

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HUNGARY<\/h5>\n

Opposition leader P\u00e9ter M\u00e1rki-Zay has visited Brussels<\/strong>\u00a0and spoke with leaders of the European Parliament and the European Commission. At his press conference, M\u00e1rki-Zay vowed to tackle corruption in Hungary, if the opposition wins the election, and to roll back Fidesz regulations.Read more about M\u00e1rki-Zay and his mission to lead Hungary to a new political future in this\u00a0portrait by Balkan Insight<\/a>, 22 November 2021.<\/p>\n

The Hungarian Constitutional Court will discuss a\u00a0motion by Orban\u2019s government, in which it challenges an ECJ judgement on implementing EU law at the EU\u2019s borders as \u201cincompatible with the Hungarian constitution\u201d<\/strong>. Read more on\u00a0Reuters<\/a>, 15 November 2021.<\/span><\/p>\n

Commission refers Hungary to the CJEU<\/strong>\u00a0over its failure to comply with Court judgment in case\u00a0C-808\/18<\/a>\u00a0concernig Hungary\u2019s legislation on the rules and practice in the transit zones situated at the Serbian-Hungarian border. Although those transit zones are closed by now, Hungary is restricting the right to asylum, according to the Commission. Another problem is the problem is that Prime Minister Viktor Orb\u00e1n\u2019s government has asked its own constitutional court whether the EU court\u2019s ruling violates the Hungarian constitution. Read more\u00a0here<\/a>, 12 November.<\/p>\n

Hungary will not receive any money for the construction of a border wall.<\/strong>\u00a0Commission President Ursula von der Leyen has announced that she has no intention of contributing to the anti-migrant wall built by Prime Minister Orb\u00e1n. The Commission is, however, prepared to finance information systems, technological infrastructures and other solutions used to control borders.<\/p>\n

Fidesz MP Lajos K\u00f3sa admitted that the Hungarian government bought Pegasus spyware used to hack journalists.<\/strong>\u00a0K\u00f3sa, the chairman of the Hungarian parliament\u2019s defence and law enforcement committee, admitted that the interior ministry had bought the Israeli Pegasus spy software, which press investigations revealed last summer was used to spy on journalists, businessmen, and local politicians. Read more on\u00a0Euractiv<\/a>, 5 November 2021.<\/p>\n

A newly-adopted amendment in Hungary legalises the establishment of fictitious addresses and could unleash \u2018voter tourism\u2019<\/strong>\u00a0in next year\u2019s parliamentary elections, according to a statement of the Hungarian Civil Liberties Union (TASZ), and the Political Capital think tank. The requirement of actually having to live at an address would be reduced to a mere presumption in favour of a residence at a contact address. Read more on\u00a0Euractiv<\/a>, 16 November 2021.<\/p>\n

Viktor Orb\u00e1n was confirmed as the leader of Fidesz for another two years, read more on Euractiv, 15 November 2021.<\/p>\n

Hungary is the only EU Member State that is not invited for the US Summit<\/strong>\u00a0for Democracy in 2021<\/strong>, read more on\u00a0Politico<\/a>, 4 November 2021. Also interesting: Jakub Jaraczewski\u2019s\u00a0thread<\/a>\u00a0about why Poland and Taiwan have been invited while Hungary is not.<\/span><\/p>\n

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GREECE<\/h5>\n

Concerns about media freedom in Greece.<\/strong>\u00a0Greece has recently passed a media law that allegedly should combat the spread of fake news. However, it effectively allows the Greek authorities to lock up journalists up three months for publishing fake news that may \u201ccause anxiety or fear to citizens\u201d. Experts fear that the new law will be used to intimidate critical journalists and suppress stories of public interest. Read more on\u00a0Euractiv<\/a>, 16 November 2021.<\/p>\n

SLAPP lawsuit against small independent media outlet Alterthes<\/strong>s by a Greek gold mining executive convicted of serious environmental crimes. Read more on\u00a0IPI<\/a>, 16 November 2021.<\/p>\n

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POLAND<\/h5>\n

Half of Polish citizens consider EU institutions \u2018too weak\u2019 over rule of law conflict, according to a recent poll by the Institute of Public Affairs (ISP).\u00a0<\/strong>\u00a0\u201cEU institutions react too late and too weak in response to the EU law violations by governments\u201d, according to 48% of Polish citizens, only 22 % disagree with this statement. Read more on\u00a0Euractiv<\/a>, 25 November 2021. Furthermore, a. majority of Poles (52%) say that the country\u2019s judiciary has worsened in the last three years, according to a recent\u00a0poll<\/a>.<\/p>\n

The\u00a0Human Rights Outlook 2021<\/strong>\u00a0(a report assessing the separation of powers in 198 countries) has found that Poland (along with China and Russia) has slipped most in its index due to its judicial system. You can read the whole report\u00a0here<\/a>.<\/p>\n

The situation at the Polish-Belarussian is escalating dramatically.\u00a0<\/strong>Warsaw has sent 12,000 troops to the border and is using\u00a0tear gas and water canons<\/a>\u00a0against migrants to push them back into Belarus. Armed Belarusian authorities dressed in camouflage gear seem to escort hundreds of migrants, including children, towards Poland. Poland is resuing to request the help of the European Border and Coast Guard Agency, Frontex, nor is it allowing NGOs at the border. In this\u00a0opinion piece on Politico<\/a>, former Polish Ombudsman Adam Bodnar and Agnieszka Grzelak, the former deputy director of the Constitutional, European and International Law department in the Ombudsman office, write about what horrible things are happening on EU territorium without the EU (or its agencies such as Frontex) monitoring the situation and intervening.<\/p>\n

K 7\/21<\/strong>: the Prosecutor General and Minister of Justice Zbigniew Ziobro has applied for the Polish Constitutional Tribunal to review the\u00a0conformity of the European Convention on Human Rights with the Polish constitution<\/strong>.<\/p>\n

K 8\/21<\/strong>: the Prosecutor General\u2019s has applied to review whether Art. 279 TFEU and Art. 39 of CJEU statute\u00a0(financial fines over non-compliance with CJEU interim orders)<\/strong>\u00a0are compatible with Polish constitution. This case concerns both interim measures in the T\u00farow mine case and case C-204\/21on the Polish Disciplinary Chamber.<\/p>\n

6 Polish judges have been suspended for 30 days over applying EU law and disregarding the K 3\/21 judgement from the Constitutional Tribunal<\/strong>. Read more on\u00a0Rule of Law in Poland<\/a>, 9 November 2021.<\/p>\n

Three judges from the Civil Chamber of the Supreme Court have requested for the Constitutional Tribunal to review whether Art. 19(1) TEU, Art. 6 ECHR and several Polish laws are consistent with the Polish Constitution,<\/strong>\u00a0read more about this in this\u00a0Twitter-thread by Jakub Jaraczewski<\/a>.<\/p>\n

A Norwegian court suggests surrender to Poland under the EAW should be suspended in general,<\/strong>\u00a0read more about this EAW case in an article by Norwegian law professor Eirik Holm\u00f8yvik on\u00a0Verfassungsblog<\/a>, 2 November 2021.<\/p>\n

Demonstrations concerning strict abortion laws.<\/strong>\u00a0Demonstrations have taken place in Poland following the death of a pregnant 30-year-old woman \u2013 the family\u2019s lawyer say the doctors have waited too long to save the woman\u2019s life. This incident has sparked new criticism about the country\u2019s strict abortion laws which allow abortinos only in cases of rape or incest, or if the life of the mother is endangered. Read more on\u00a0Politico<\/a>, 2 November 2021.<\/p>\n

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SLOVENIA<\/h5>\n

Slovenia\u2019s delegated prosecutors for EPPO appointed on a \u2018temporary\u2019 basis.<\/strong>\u00a0Slovenia\u2019s government has\u00a0 put forward Tanja Frank Eler and Matej O\u0161tir as Slovenia\u2019s two prosecutors delegated to the European Public Prosecutors\u2019 Office (EPPO). However, their appointment is \u201ctemporary\u201d, thus in force until the national appointment procedure is concluded. Read more on\u00a0Euractiv<\/a>, 19 November 2021.<\/p>\n

LIBE Committee Mission to Slovenia \u2013 report published.<\/strong>\u00a0Among the findings are an \u201curgent need for legislative reforms, proper implementation and more transparency in many areas.\u201d You can read the full report\u00a0here<\/a>.<\/p>\n

The Slovenian Press Agency (STA) signed an agreement with the government communication office, which will allow it to access state funding this year.<\/strong>\u00a0The independence of the press in Slovenia has been\u00a0questioned<\/a>\u00a0after prime minister Jans\u030ca has repeatedly and openly attacked Slovenia\u2018s main public media outlets, calling the Slovenian Press Agency STA\u00a0 \u201ca national disgrace, unworthy of the name it bears\u201d. The government has previously halted financing for STA and pushes to increase its influence on the agency. Read more on\u00a0Politico<\/a>, 8 November 2021.<\/p>\n

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ARTICLES, PAPERS, REPORTS<\/h5>\n

Piotr Bogdanowicz,\u00a0Legal opinion on the legal consequences of the Constitutional Tribunal ruling in case K 3\/21 on the incompatibility of the provisions of the Treaty on European Union with the Constitution of the Republic of Poland in light of European Union law<\/strong>, you can read the legal opinion\u00a0here<\/a>.<\/p>\n

Edit Zgut,\u00a0Tilting the Playing Field in Hungary and Poland through Informal Power<\/strong>, read the article\u00a0here<\/a>.<\/p>\n

Radosveta Vassileva,\u00a0Yellow Light for Disciplining Inconvenient Judges? -The ECtHR\u2019s Ambivalent Judgment in\u00a0<\/strong>Todorova v Bulgaria<\/strong>,\u00a0<\/em>Verfassungsblog<\/a>.<\/p>\n

Dariusz Mazur for Themis,\u00a0Attack on the Polish judiciary, or the anatomy of a creeping legal Polexit<\/strong>, you can read the report\u00a0here<\/a>.<\/p>\n

Camino Mortera-Martinez,\u00a0How to solve a problem like Poland<\/strong><\/span>, Centre for European Reform, available\u00a0here<\/a>.
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Simona Guerra,\u00a0<\/span>The Polish people support the EU \u2013 it\u2019s their government that continues to antagonise\u00a0Brussels<\/strong>,\u00a0The Conversation<\/a>.<\/p>\n

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SEMINARS\/WEBINARS<\/h5>\n

European Policy Centre:\u00a0Poland\u2019s challenge to EU law \u2013 how should the EU respond?<\/strong>\u00a0(3 November 2021)<\/p>\n